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Carmona v. Southwest Airlines Co., No. 08-51175 (5th Cir. Mar. 22, 2010)

| Mar 22, 2010 | Daily Developments in EEO Law |

The plaintiff flight attendant wins a jury verdict for ADA discrimination, loses it on a Rule 50 judgment as a matter of law, and this week wins it back on appeal in the Fifth Circuit.

Carmona v. Southwest Airlines Co., No. 08-51175 (5th Cir. Mar. 22, 2010): The employee in this case suffers from psoriatic arthritis, and “spends about one-third to one-half of each month unable to move without a great deal of pain.” As a result, he has had to avail himself of intermittent FMLA and company-sanctioned sick leave to cover those periods. His absences from the workplace, despite such sanction, irritated his supervisors. So when the employee’s unexcused absences arguably totaled twelve points under the airline’s absentee policy, he was fired despite that the managers showed leniency to other employees who were not disabled.

This was the case in a nutshell, taken from the employee’s perspective, and the jury awarded him $80,000 for ADA discrimination. (He lost the jury verdict on a Title VII claim, not the subject of appeal.) But the district court entered judgment for the defendant, holding that the employee had presented insufficient evidence that (1) he was an “individual with a disability” and (2) that he was fired “because of” disability.

The Fifth Circuit reverses. While holding (in line with every other U.S. Court of Appeals to date) that the 2008 ADA Amendment Act did not apply retroactively to a claim arising before January 1, 2009, the panel still finds that even under the more restrictive definition of “disability” attending under the old ADA, Carmona presented sufficient evidence that he was substantially limited in the major life activity of walking.  The panel also finds the defendant guilty of selective (if not outright misleading) citations to the record, and confirms that the testimony supported that the plaintiff could perform physical activity un impaired only on his good days. Although the plaintiff found other employment and experienced a trouble-free period of job attendance, “the jury rationally could have concluded that Carmona was able to work for Jet Blue despite being substantially limited in his ability to walk, because he could tolerate the pain long enough to make it through a part-time day as a customer service agent.” The panel also finds that the employee was “qualified” because he was able to perform the essential function of the job with the accommodation of intermittent leave, which Southwest had granted him.

The panel also holds that Carmona presented sufficient evidence that he was fired “because of” disability. The airline argued successfully in the district court that there was no evidence that the comparators were not disabled. But the panel notes that this evidence was unavailable to plaintiff precisely because the employer withheld it.

“Another relevant principle is that the risk of failure of proof may properly fall upon the party who contends that the more unusual event has occurred. . . In this case, Southwest withheld all information about Employees 4 through 9 except for their sex. There is no doubt that most people are not individuals with disabilities. Therefore, if Southwest knew that one or more of Employees 4 through 9 was disabled, it bore the burden of coming forward with that information at trial. Indeed, it seems strange that Southwest would not have introduced evidence that one or more of these employees was disabled, if it were true, given the detrimental effect this information would have had on Carmona’s case. Therefore, we find that the jury was entitled to assume, based on the absence of proof to the contrary and the probabilities of the situation, that the employees represented by Exhibits 4 through 9 were not disabled.”

Finally, the court remands for the district court to take up plaintiff’s motion seeking reinstatement.

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